On 27 July 1998, the Human Rights Committee adopted its Views under article 5,
paragraph 4, of the Optional Protocol in respect of communication No. 651/1995. The text
of the Views is appended to the present document.

The Human Rights Committee, established under article 28 of the
International Covenant on Civil and Political Rights,

Meeting on 27 July 1998,

Having concluded its consideration of communication No.651/1995
submitted to the Human Rights Committee by J. Snijders, A. A. Willemen and Ch. C. M. Van
der Wouw, under the Optional Protocol to the International Covenant on Civil and Political
Rights,

Having taken into account all written information made available to it
by the authors of the communication, their counsel and the State party,

Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1. The authors of the communication are J. Snijders, A. A. Willemen and Ch. C. M. van
der Wouw, Dutch citizens at present living in a nursing home. They claim to be victims of
a violation by the Netherlands of article 26 of the International Covenant on Civil and
Political Rights. They are represented by Kalbfleisch, Van der Blom & Fritz, a law
firm in Haarlem, the Netherlands.

Facts as submitted by the authors:

2.1 In the Netherlands, the Algemene Wet Bijzondere Ziektekosten (AWBZ) provides a
compulsory, nation-wide insurance for the costs of long-term medical care. The AWBZ is
being funded out of contributions which are being levied by the State's tax department.
Further, a contribution can be imposed on persons benefitting from the AWBZ, on the basis
of article 6(2) of the law.

2.2 The own contributions are being implemented according to the "Own Contribution
Scheme" laid down in a government decree of 1 May 1987, as amended on 21 December
1988. Income-related contributions are being levied from single persons (that is, persons
who are not married or do not cohabit with a partner) and from married persons or persons
who cohabit when both partners benefit from the AWBZ. The maximum income-related
contribution is Fl. 1,350 for a single person or for a married or cohabiting couple. The
non-income-related contribution amounts to Fl. 180 a month, and is being levied only from
those patients who do not pay an income-related contribution.

2.3 On 1 July 1989, the authors, who are single, were levied for an own contribution of
Fl. 978, Fl. 1,210 and Fl. 745, respectively, for their stay in a nursing home in
Zandvoort. They appealed to the Board of Appeal (Raad van Beroep) in Haarlem, arguing that
the distinction between married persons and persons who cohabit on the one hand and single
persons on the other hand constituted discrimination in violation of article 26 of the
Covenant. By decision of 14 January 1991, the Board of Appeal allowed their appeal,
finding that the distinction between married or cohabiting persons and single persons,
while not discriminatory per se, was not justified in the specific circumstances and
amounted to a discrimination of single persons. The Board noted that the distinction had
been made on the basis of budgetary, administrative and social grounds. The social
considerations were aimed at the continuation of the communal household, in case one
partner is admitted into care and another is left behind. The Board found, however, that
this consideration did not justify the exemption of married or cohabiting persons from all
income-related contributions, and that the specific circumstances of couples could be
taken into account when determining the income-related contribution.

2.4 The Ziekenfonds Spaarneland, the regional executive body for the levy of
income-related contributions, appealed the Board's decision to the Central Board of Appeal
(Centrale Raad van Beroep), which, by judgement of 1 October 1992, quashed the decision by
the Board of Appeal and rejected the authors' claim. It considered that the distinction
was justified on the basis that costs saved by a married or cohabiting person, when a
household is continued, are minimal, whereas costs saved by a single person, whose
household is discontinued, are substantial. It concluded that the AWBZ's own contribution
scheme was based on reasonable and objective criteria and therefore did not constitute a
discrimination within the meaning of article 26 of the Covenant.

2.5 The authors state that no further appeal is possible against the decision of the
Central Board of Appeal.

The complaint:

3.1 The authors claim that they are victims of discrimination because they have to pay
an income-related contribution towards the costs of hospitalization, whereas married
persons or persons who cohabit and of whom the partner is not also hospitalized only pay a
minimal non-income-related contribution. They argue that the distinction is not based on
reasonable and objective criteria. They claim that the heart of the matter, justifying a
contribution, is whether the person concerned still continues his own household, rather
than whether he is married, cohabits or is single. However, under the law and regulations
currently in force in the Netherlands, an income-related contribution is imposed on single
persons after six months, whether they have discontinued their household or not. It is
submitted that the choice either to continue or to discontinue their own household has
been taken away from them, due to the precarious financial situation they find themselves
in. The authors claim that this may have a demoralizing effect on the patient and
reinforce the illness, and claim moreover that it entails the break-off of many social
contacts since it precludes them from using their own household temporarily, for instance
during weekends. Furthermore, after recovery, they cannot go back to their own household
and would have to start all over again. They state that even for a married or cohabiting
couple, of which both partners are in a nursing home, who pay the income-related
contribution, it is generally possible to keep their own household, because the maximum
contribution to be paid by the couple is the same as the maximum contribution to be paid
by a single person, thereby leaving the couple financial room to continue their household
if they so wish. The authors state that a solution could be found by raising the
non-income-related contribution for everybody, and making the income-related contribution
dependent upon the factual circumstances of each person, regardless of their marital
status.

3.2 The authors further argue that, since the AWBZ is a national obligatory insurance,
to which all Dutch nationals contribute, the requirement to pay an own contribution if one
is entitled to insurance benefits, is in violation of the principle of equality of all
insured.

Issues and proceedings before the Committee:

4.1 At its 56th session, the Human Rights Committee considered the admissibility of the
communication

4.2 The Committee noted that the State party, by submission of 22 November 1995, had
informed the Committee that the authors exhausted the national remedies and that it did
not contest the admissibility of the communication.

4.3 The Committee considered that no obstacles to admissibility existed and that the
issues raised by the communication should be considered on its merits.

5. The Human Rights Committee therefore decided that the communication was admissible.

State party's observations on the merits and the authors' comments thereon

6.1 By submission of 6 November 1996, the State party recalls the factual basis of the
communication as well as the authors' claims. It recalls that individual contributions for
residential care are payable if the care provided by an institution is combined with
24-hour residence. The relevant rules provide:

- during the first six months of residence everyone over 18 years of age is required to
pay a non-income-related contribution of NLG 210. Where married or cohabiting partners are
both required to pay this non-income-related contribution, each pays half of the said sum;

- after the first six months, everyone over 18 years of age, and depending on the
marital status and the personal circumstances, is required to pay a contribution. For
single persons under the age of 65 the contribution is up to NLG 1,350, and for those over
the age of 65 it is up to NLG 2,200. Married or cohabiting persons under 65 years of age,
if both partners are residing in an institution, pay an income related contribution of up
to NLG 1,350 (per couple). If only one of the partners reside in the institution, he or
she continues to pay the non-income related contribution of NLG 210. If the married or
cohabiting persons are over the age of 65, the respective amounts are NLG 2,200 and NLG
210.

6.2 The State party explains that to calculate the income-related contribution, the
total income is first calculated, after which deductions are made for specific expenses.
The payable contribution is calculated on the resulting amount. If it is considered likely
that the insured person's residence will be temporary, and that he may be returning to the
community, deductions are allowed for the retention of an independent household.

6.3 The State party explains that the AWBZ is a national insurance scheme covering
serious medical risks, such as unusually high or long-term medical expenses. It argues
that it is necessary to complement the insurance with a system of personal contributions,
since otherwise the scheme would not be affordable. According to the State party, the
contributions system is based on the notion that whenever a person is taken into
residential care, some money is saved in household expenses. The State party submits that
each individual's ability to pay as well as domestic circumstances are taken into account,
but that the determining factor is whether the period of residence should be regarded as
temporary or permanent and whether the person concerned may be reasonably expected to
return to the community.

6.4 According to the State party, a single person who likely will remain in residential
care must be deemed incapable of maintaining a household of his own and is therefore
saving the expenses of such a household. The same is said to apply to couples of which
both partners are residing permanently in residential care. On the other hand, the State
party claims, a married or cohabiting couple of which only one partner is in residential
care, is saving very little in household expenses - only the food and care, which is
reflected in the NLG 210 contribution. When both partners of a couple are in residential
care, each is liable for part of the contribution (half in case of a non-income related
contribution, proportional to income in case of an income-related contribution). Their
contribution is calculated taking the total income of the couple into account.

6.5 The State party explains that the present system reflects the Directive adopted by
the Council of European Communities on 19 December 1978, concerning the progressive
implementation of the equal treatment for men and women in matters of social security.
Before the present system came into effect, with respect to married couples, only the
husband was required to pay a personal contribution. When the system was adjusted,
resulting in the present one, the Government applied the principle that the adjustment
should have no financial consequences, either for the AWBZ or for those insured, and in
particular for married couples, in order to avoid that they would suddenly have to pay
double the contribution than before, while their income remained the same.

6.6 As regards the authors' claim that the contribution scheme is in violation of the
principle of equal treatment of all insured, the State party observes that the scheme does
not result in unequal treatment of equal cases. According to the State party, there is an
essential difference between those who still have, or are expected to have, a household
and those who do not.

6.7 The State party concludes that the distinction made in the personal contribution
scheme under the AWBZ is based on the fact whether or not the person concerned has, or is
assumed to have, an independent household. If the household is continued, only a limited
amount of money is saved, whereas if the household is relinquished, all the costs of
accommodation, care and food, is in principle saved, justifying a higher personal
contribution. The State party argues therefore that the distinction made is not based on
any personal feature of the person concerned, but on reasonable and objective grounds.
According to the State party, it does not constitute a violation of article 26 of the
Covenant.

7.1 In his comments on the State party's submission, counsel notes that all residents
of the Netherlands are compulsory insured against special medical costs under the AWBZ.
The contributions to the scheme are collected by the tax authorities and are intended to
cover also the costs of admission to a nursing home or clinic. According to counsel, in
practical terms the obligation to contribute is the same for single persons and
married/unmarried couples. Since a distinction is made, however, between single persons
and couples once they claim reimbursement under the AWBZ insurance, in the sense that
different deductible amounts apply, the authors argue that the distinction is
discriminatory under article 26 of the Covenant.

7.2 Counsel refers to the different maximum amounts paid, and in particular to the
amount for persons over the age of 65, and concludes that it seems that these amounts
reflect not only the saving on subsistence, but also a contribution towards the costs of
care, treatment and rehabilitation. From an insurance perspective, according to counsel,
this amounts to inequality and constitutes discrimination based on status without
reasonable and objective justification.

7.3 Counsel submits that although in individual cases, on the basis of a prognosis made
by the attending therapist or physician, a single person may be considered likely to go
home eventually, an thus be eligible to a reduction in the payable amount, the situation
of inequality remains because this is fully dependent on the prognosis made, whereas
medical prognoses are irrelevant for married couples. Counsel reiterates that single
persons who are required to pay an income-related contribution after six months are in
practice denied the choice of continuing to keep an independent household.

7.4 In this context, counsel refers to the difference in payment between a single
person who makes an income-related contribution and the case where both partners of a
couple are admitted and jointly required to pay the maximum amount of only one of them.

7.5 Counsel concludes that the rules governing the personal contributions under AWBZ
insurance, with single persons being charged with an income-related contribution and
married persons whose partner is not admitted with a contribution not-related to income,
and with only one income-related contribution if they are both admitted, must be deemed to
violate article 26 of the Covenant.

Issues and proceedings before the Committee

8.1 The Human Rights Committee has considered the present communication in the light of
all the information made available to it by the parties, as provided in article 5,
paragraph 1, of the Optional Protocol.

8.2 The question before the Committee is whether the principle of equality as laid down
in article 26 has been violated (a) because the authors are required to make personal
contributions under the AWBZ because they are in residential care, whereas insured persons
who are not in residential care are not required to make personal contributions; and
because the calculation of the personal contributions puts the authors at a disadvantage,
since (b) they are required to pay income-related contributions whereas married or
cohabiting persons whose partner is not in care, only pay a fixed non-income related
contribution, regardless of their income, and (c) couples where both partners are in care,
pay the same maximum amount as a single person.

8.3 The Committee is of the opinion that the requirement that individuals, when
benefiting from the AWBZ insurance scheme, pay a personal contribution towards the costs
of residential care, is as such not in violation of the principle of equality before the
law. With regard to the issue under (a), the State party has explained that those using
the system have to contribute to the scheme lest this become not affordable. The Committee
considers that the explanation given by the State party justifies the distinction between
those who are required to pay personal contributions and those who are not required to do
so, and the distinction thus does not constitute a violation of article 26 of the
Covenant.

8.4 Personal contributions under the AWBZ should however be calculated objectively and
without arbitrariness. In relation to the issue under (b), the Committee has taken note of
the State party's explanation that the distinction in the contribution is based upon the
factual difference that married or cohabitating persons leave behind a partner who
continues to live in what was their common household and therefore does not save the same
amount of money as does a single person in residential care. For this reason they are
requested to pay a fixed contribution. The Committee considers that this distinction,
based on a presumption that has its basis in the factual circumstances of life of persons
benefiting from the scheme, is objective and reasonable. Therefore it does not constitute
a violation of article 26 of the Covenant. This conclusion is not affected by the argument
of the authors that the State party might have at its disposal alternative methods of
levying sufficient funding for the AWBZ scheme.

8.5 With regard to the issue under (c), the Committee notes that the State party has
explained that in calculating the amount of money each person must pay as an
income-related contribution, it takes into account each individual's ability to pay as
well as domestic circumstances. In case of a couple where both spouses are in care, their
total income forms the basis of the calculation of their contribution. This, however, does
not affect the ceiling of the own contribution which is the same (NLG 1,350) for single
persons and couples alike. None of the authors was levied for an own contribution that
would amount to this ceiling. Consequently, the authors have failed to show that they are
victims of a violation of article 26 of the Covenant.

9. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional
Protocol to the International Covenant on Civil and Political Rights, is of the view that
the facts before it do not disclose a violation of article 26 of the International
Covenant on Civil and Political Rights.